0907337 [2010] RRTA 165 (15 March 2010) DECISION RECORD RRT CASE NUMBER: 0907337 DIAC REFERENCES: CLF2008/11688 and CLF2008/8408 COUNTRY OF REFERENCE: Vanuatu TRIBUNAL MEMBER: Deborah Morgan DATE: 15 March 2010 PLACE OF DECISION: Adelaide DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention. STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW 1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act). 2. The applicant, who claims to be a citizen of Vanuatu, most recently arrived in Australia [in] June 2004 and she applied to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa [in] January 2008. 3. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention The delegate decided to refuse to grant the visa [in] April 2008 and notified the applicant of the decision and her review rights. 4. The applicant sought review of the delegate's decision and the Tribunal (RRT file number 0802686), differently constituted (the first Tribunal), affirmed the delegate's decision [in] October 2008. The applicant sought review of the first Tribunal's decision by the Federal Magistrates Court and [in] March 2009 the Court upheld the first Tribunal’s decision. The applicant appealed the Federal Magistrate’s decision and [in] August 2009 the Federal Court allowed the appeal and set aside the decision and remitted the matter to the Tribunal to be determined according to law. 5. The matter is now before the Tribunal pursuant to the order of the Court [in] August 2009 RELEVANT LAW 6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant. 7. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or the Convention). 8. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994. Definition of ‘refugee’ 9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 10. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1 and Applicant S v MIMA (2004) 217 CLR 387. 11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. 12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. 14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor. 15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act. 16. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well- founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. 17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. 18. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. CLAIMS AND EVIDENCE The primary application 19. The Tribunal notes that the following information on the Department’s files has not been disputed at review The applicant is a citizen of Vanuatu who was born on [date deleted: s.431(2)], and she most recently arrived in Australia [in] June 2004 on a visitor visa subject to the condition “no further stay.” [On a date in] June 2004 the applicant’s visitor visa ceased and she became unlawful after that day. In January 2008 the owner of a roadhouse [location deleted: s.431(2)] contacted the Department about the applicant’s immigration status as there had been difficulty in obtaining a tax file number for the applicant. 20. [In] January 2008 an officer of the Department spoke to the applicant by telephone and interviewed her. At interview the applicant claimed that she came to Australia because her husband was physically violent to her and she had been told that in order to obtain a divorce in Vanuatu she needed to stay away from her husband for three years. She has daily telephone contact with her children who also live in Vanuatu. When told by the officer that her visa had ceased the applicant was upset and repeatedly asked not to be sent back to Vanuatu The applicant was interviewed in person by the Department on 17 January 2008 and, among other matters, told the officer that she could not return to Vanuatu because she is afraid of her husband. She stated that her husband calls her now and again. 21. The applicant’s protection visa application includes the following: her tourist visa application and associated documents; Form 866C; a letter of support from STARRS that confirms the applicant is “a victim of prolonged and sustained abuse” and also a written submission from her former registered migration agent. The delegate’s decision 22.